BEFORE THE VIRGINIA STATE BAR
DISCIPLINARY BOARD

IN THE MATTER OF
TIMOTHY WADE ROOF

VSB DOCKET#02-021-0334

DISSENT

This matter came before the Board pursuant to a Second District, Section I subcommittee certification alleging three areas of misconduct: that Mr. Roof's fees were unreasonable; that Mr. Roof failed to deposit the fee into an escrow account; and that Mr. Roof failed to act with reasonable diligence and promptness in representing this client.

For the reasons stated in the majority opinion, the Board found unanimously that the Bar had proven by clear and convincing evidence that Mr. Roof has committed misconduct in the three areas alleged.

The majority now imposes the sanction of a public reprimand with terms. It is from this judgment of sanction that I dissent.

Mingling of Funds
Mr. Roof was hired by Ms. Lillian Hassenfratz to review and file three petitions for Writs of Habeas Corpus for her acquaintance, Arnold W. Butler. Mr. Butler was serving time for several felony convictions occurring in Fluvanna County, Albemarle County, and the City of Charlottesville. Ms. Hassenfratz explained that she was not particularly close to Mr. Butler, but that she felt sorry for him and agreed to act as his liaison.

Ms. Hassenfratz gave Mr. Roof three petitions, handwritten by Mr. Butler in jail, for his review.
Mr. Roof told Ms. Hassenfratz that he would charge $1,000.00 for the matter, which Ms. Hassenfratz paid out of her own funds. Ms. Hassenfratz eventually came to understand that Mr. Roof found the Albemarle and Charlottesville petitions to be without merit, but that the Fluvanna County petition had merit and that he would proceed with that one (despite the fact that the petitions were virtually identical). Ms. Hassenfratz thought there might be additional fees if the petition were granted, but this was not specifically discussed.

In fact, beyond that which appears above, the fee was not discussed at all. By Mr. Roof's own testimony, no fee agreement was presented to either Ms. Hassenfratz or to Mr. Butler. No engagement letter was sent. The point at which the fee would be considered earned was not discussed. The fact that Mr. Roof considered the fee to be a "non-refundable retainer" was never discussed. Mr. Roof testified that additional fees could be charged, but this was not discussed with Ms. Hassenfratz or Mr. Roof's client.

Mr. Roof promptly deposited the entire $1,000.00 into his operating account.

Under these circumstances, it is clear that the $1,000.00 was a flat fee for the review of the three petitions, and the filing of the Fluvanna County petition. Upon questioning by the Board, Mr. Roof acknowledged that the fee was exclusively for services to be rendered in the future. None of the fee was for services already performed. Nevertheless, Mr. Roof insisted, even during the hearing, that the fee was a "non-refundable retainer", and that he was therefore entitled to deposit the fee directly into his operating account. He is plainly wrong.

All money received for services to be performed in the future must be deposited into escrow until earned. No fee of this sort is non-refundable even when the provisions of the fee agreement identify the fee as such. Only a fee received to ensure the lawyer's availability or to establish a conflict can be considered a "retainer". As the Standing Committee on Legal Ethics has opined:
. . . . a retainer (or advance periodic payment) is a payment by a client to an attorney to insure the attorney's availability for future legal services and/or as consideration for his unavailability to a potential adverse party in the future. A retainer is not a pre-payment for legal services to be rendered in the future, and is thus distinguished from advanced legal fees. A retainer seeks to guarantee the client's right to secure the attorney's employment for representation of his interests in a matter which may arise in the future. This Committee has previously opined, and continues to believe that a retainer is not violative of the Disciplinary Rules. . . . LEO: Fees (Compendium Opinion), LE Op. 1606 (1994).

Mr. Roof misuses the term "retainer."

A definitive discussion of ethical matters related to fees distinguishing "retainers" from "advanced legal fees" can be found in Legal Ethics Opinion 1606. Every Virginia lawyer should be familiar with the concepts discussed in the opinion. It is especially distressing that Mr. Roof was not only unfamiliar with the concepts in the opinion, but failed to become familiar with them prior to his hearing. Mr. Roof simply doesn't understand.

As if Mr. Roof's ignorance of the rules regarding fees weren't enough, we are informed that Mr. Roof has previously been disciplined for similar conduct, receiving a public reprimand with terms. One of the terms was that Mr. Roof view a four hour videotape entitled "Lawyers and Other People's Money". Mr. Roof reported on February 28, 2001 that he did so. Mr. Roof was also required to discuss the handling of client funds with an accountant designated by the Bar. Mr. Roof reports that he did this on February 23, 2001.

Despite Mr. Roof's previous reprimand, and the required training, Mr. Roof continues to mishandle clients' money.

Diligence

Mr. Roof accepted employment in this matter on or about November 20, 2000. During the winter of 2000-2001, Ms. Hassenfratz called several times inquiring what, if anything, was being done. On the first occasion she was told by Mr. Roof's secretary that they would begin work after Christmas. On a subsequent occasion she was told that information relating to the case could not be released. She was similarly rebuffed in a third phone call. In April of 2001, Ms. Hassenfratz demanded her money back. This demand was not honored. Of course, by April, Ms. Hassenfratz's money had been in Mr. Roof's operating account for roughly six months, if it had not already been spent. On April 4, 2001, Ms. Hassenfratz called Mr. Roof's office and informed Mr. Roof's secretary that Mr. Butler had been moved to a new correctional facility, and provided the address.

On May 17, 2001, with the deadline for filing under the statute of limitation rapidly approaching, Mr. Roof wrote Mr. Butler at the Powhatan Correctional Facility, from which Mr. Butler had moved and about which transfer Mr. Roof had been informed.

Upon realizing his mistake, Mr. Roof sent a second letter to Mr. Butler. The second letter was addressed to Sussaz [sic] State Prison, #24414 Mussel white [sic] Drive, Waverly, Al [sic]. The letter is so replete with mistakes and misinformation that it bears quoting, in part, here:

Dear Mr. Butler:
I am writing this letter to inform you that you should file the Writ of Habeas Corpus for Albermarle [sic] County through the prison. This needs to be done by June 6, 2001.

When Mr. Roof suggests that Mr. Butler should file the "Writ of Habeas Corpus" he of course is referring to the petition for the writ. Mr. Roof refers to the "Writ . . . for Albermarle [sic] County". Not only does he misspell Albemarle, but he is actually referring to the petition relating to the Fluvanna County conviction.
Mr. Roof suggests that the "writ" should be filed "through the prison". Petitions cannot be filed through the prison.
Mr. Roof informs Mr. Butler that he must file by June 6, 2001. This is a curious date since the sentencing hearing was on June 4, 1999, and the sentencing order was signed on June 18, 1999. On cross examination, Mr. Roof explained that he knew the sentencing hearing was held on June 4, and that it would have taken the Judge a few days to sign the order. Had Mr. Roof guessed incorrectly, Mr. Butler's petition would have been time barred.
Upon receipt of this letter, Mr. Butler was dismayed. He wrote:

I just received your letter and to be totally honest I'm rather upset and lost for words . . . Now today, 6 months later and not 2 weeks from my deadline, I get this letter saying I should just file it myself . . . . We all discontinued seeking representation and I didn't go forth with filing the habeas because I assumed you'ld [sic] use or disreguard [sic] the completed paperwork I sent you . . .

Now Im [sic] hear [sic] at Sussax [sic], confined to a cell 23 hours a day and without the mean to re-do the work I had completed and sent you 6 months ago . . .

I just wish you wouldn't have gave me and my family the impression you'ld [sic] help me, or at least [emphasis present in the original] tell me to "just do it myself" in a timely fashion ­ not 6 months later and 2 weeks befor [sic] my deadline . . .

I guess, I'm out of luck . . . .

In response to Mr. Butler's letter, Mr. Roof filed Mr. Butler's petition. It is important to note, however, that Mr. Roof did not correct, reorganize, or even type Mr. Butler's handwritten petition. Mr. Butler's handwritten petition was filed as it was.

In explaining his actions, Mr. Roof said "Mr. Butler had written an excellent writ". Such is not the case. While Mr. Butler is to be commended for his work, Mr. Butler is not a sophisticated man, and he certainly is no lawyer. Mr. Butler's petition is replete with grammatical errors and misspellings. Worse, Mr. Butler recites the date of his sentencing hearing, June 4, 1999, as his actual sentencing date, when, in fact, the sentencing order was signed on June 18, 1999. This error would eventually cause Mr. Butler's petition to be time barred.

Mr. Butler's original filing was received by the Supreme Court on June 7, 2001, but was returned for failure to pay the filing fee. Mr. Roof re-filed the petition with the filing fee on June 26, 2001. The petition was dismissed as time barred, because Mr. Roof recited June 4, 1999, as the date of sentencing. Mr. Butler has consequently lost his remedy.

Mr. Roof made no inquiry of the Fluvanna Circuit Court regarding the record date of sentencing until June 6, 2001.
Regarding Mr. Roof's selection of the Fluvanna convictions as the only convictions in which a petition for a writ had merit, it should be borne in mind that the petitions drafted by Mr. Butler relating to the Albemarle, Charlottesville, and Fluvanna convictions were virtually identical.

In Fluvanna County, Mr. Butler was convicted of seven felonies, having maximum penalties of five years, 10 years, 10 years, 10 years, 10 years, 10 years, and 10 years, respectively. Mr. Butler was actually sentenced to five years with four and one-half years suspended on each charge, or six months per charge. It was this sentence that Mr. Roof considered so harsh as to constitute grounds for the granting of a writ of habeas corpus.

A review of Mr. Roof's file reveals a single copy of an article on habeas corpus proceedings. Although Mr. Roof claims to have performed other research and tasks related to the preparation of this petition, no support for this contention can be found in Mr. Roof's file.

In summary, Mr. Roof did little to nothing in this case. In fact, he worsened his client's position by depriving Mr. Butler of his remedy through procrastination, neglect, or contempt for the welfare of his client.

 

The Reasonableness of the Fee

As stated in the majority opinion, the Board certainly does not find that $1,000.00 is an unreasonable fee for the work required in a case of this sort. Nevertheless, considering the work that Mr. Roof actually did, we find unanimously that the fee was unreasonable in this particular case. Mr. Roof was little more than an extremely well paid messenger. Further, Mr. Roof's retention of Ms. Hassenfratz's money following Mr. Roof's discovery of his mistakes is unconscionable.


Summary
I am of the opinion that Mr. Roof's failure to deposit the money into an escrow account, following a public reprimand for similar misconduct, in and of itself calls for a suspension of Mr. Roof's license to practice law in the Commonwealth.

 

Mr. Roof's appalling disregard for the welfare of his client even further justifies suspension.

I would suspend Mr. Roof's license for one year and one day, so as to require him to pass the Multistate Professional Responsibility Examination prior to his license being reinstated.